Chapter 5 - Adjudication

A. Prima Facie Review

After receipting a self-petition, USCIS first determines whether the evidence submitted establishes a prima facie (“at first look”) case.^[1] Self-petitioning spouses and children and any listed derivative beneficiaries may be considered “qualified aliens” eligible for certain public benefits if they can establish a prima facie case for immigrant classification or have an approved self-petition.^[2]

USCIS does not make a prima facie determination for self-petitions filed from outside the United States. Self-petitioners who are outside the United States are not eligible for U.S. public benefits. Note that although USCIS issues prima facie determinations for self-petitioning parents of U.S. citizens, they are not included in the definition of “qualified aliens” in statute and are, therefore, ineligible for public benefits as “qualified aliens.”^[3]

1. Establishing a Prima Facie Case

To establish a prima facie case, the self-petitioner must submit a completed Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) and evidence to support each of the eligibility requirements for the self-petition.^[4] The self-petitioner must merely address each of the eligibility requirements but need not prove eligibility in order to establish a prima facie case.^[5]

If USCIS determines that a self-petitioner has demonstrated prima facie eligibility, USCIS issues a Notice of Prima Facie Case (NPFC) to the self-petitioner.^[6] The decision to issue an NPFC rests solely with USCIS.^[7]

If USCIS determines that the self-petitioner did not establish a prima facie case upon initial review, officers may, in their discretion, issue a Request For Evidence (RFE) seeking additional evidence. If additional evidence is submitted and the self-petitioner establishes a prima facie case upon second review, USCIS issues an NPFC.

Regardless of whether a self-petitioner establishes a prima facie case and receives an NPFC or not, USCIS may discover additional deficiencies while adjudicating the self-petition. For such cases, USCIS may issue an RFE and will consider RFE responses solely to adjudicate the self-petition.^[8]

Note that the NPFC does not confer immigration status or a benefit, and a self-petitioner may not apply solely for an NPFC. USCIS’ decision to issue or not issue an NPFC is not a consideration in the adjudication of the underlying self-petition, and a prima facie determination, whether favorable or adverse, is not a final adjudication of the self-petition.

A favorable NPFC does not mean the self-petitioner has established eligibility for the underlying self-petition, and additional evidence may be required to establish such eligibility after a favorable NPFC has been issued.^[9]

2. Validity Period and Renewals

Self-petitioners may use the NPFC as evidence to establish their eligibility for certain public benefits and are eligible to renew their NPFC, as needed, until USCIS completes adjudication of the self-petition.^[10] NPFCs are initially valid for 1 year. If USCIS has not made a decision on the self-petition by the time the NPFC expires, USCIS automatically sends a renewed NPFC within 60 days of the expiration date.

The NPFC is renewed for 180 days and continues to be renewed for 180-day periods until USCIS adjudicates the self-petition. If the Form I-360 is denied, USCIS does not re-issue or extend the NPFC. Filing an appeal of Form I-360 does not extend the validity of an existing NPFC.

B. Review of Evidence

1. Standard of Proof

The standard of proof refers to the quality and weight of the evidence required to prove a fact. The standard of proof to establish eligibility for a self-petition is preponderance of the evidence.^[11] Establishing eligibility by a preponderance of the evidence means that it is more likely than not that the self-petitioner qualifies for the benefit. This is a lower standard of proof than both the “clear and convincing” and “beyond a reasonable doubt” standards of proof. The burden is on self-petitioners to demonstrate their eligibility for the self-petition by a preponderance of the evidence.^[12]

2. Any Credible Evidence Provision

Generally, petitioners are required to submit primary or secondary evidence with a family-based immigrant visa petition.^[13] Although Violence Against Women Act (VAWA) self-petitioners are encouraged to submit primary or secondary evidence whenever possible, an officer must consider any credible evidence a self-petitioner submits to establish eligibility.^[14] The determination of what evidence is credible and the weight to be given to the evidence is within the sole discretion of USCIS.^[15]

For VAWA self-petitioners, the abusive family member may control access to or destroy necessary documents in furtherance of the abuse, which may prevent the applicant from being able to submit specific documentation. Other self-petitioners may have fled the abusive situation without taking important documents with them.

Congress created the “any credible evidence” standard for VAWA filings in recognition of these evidentiary challenges. Officers should be aware of and consider these issues when evaluating the evidence.

Weighing and Determining the Credibility of Evidence

A self-petition may not be denied for failure to submit a particular piece of evidence.^[16] An officer may only deny a self-petition on evidentiary grounds if the evidence that was submitted is not credible or otherwise fails to establish eligibility. Officers may not require that the self-petitioner demonstrate the unavailability of primary evidence or a specific document. An explanation from the self-petitioner, however, regarding the unavailability of such documents may assist officers in adjudicating the case.

Officers determine what evidence is credible on a case-by-case basis. Often, evidence that is credible in one setting will not be so in another. Officers should consider whether the evidence may be credible or not on either an internal or external basis.

For example, evidence that is inconsistent with the other elements of the self-petition is likely not internally credible; and evidence that does not conform to external facts, such as information contained in USCIS electronic databases, is likely not credible on an external basis. Officers should carefully review evidence in both these regards before making a credibility determination. The determination of what is credible will often also be a function of other elements in the case.

For example, if USCIS finds a self-petitioner’s testimony in an affidavit to be inconsistent internally or inconsistent with other evidence, officers could determine in their discretion that the evidentiary value of that affidavit may be diminished. However, officers could determine in their discretion that minor inconsistencies regarding information that is not material to the self-petitioner’s eligibility would not likely diminish the evidentiary value of the self-petitioner’s affidavit.

Some general principles are applicable in making a credibility determination. Officers generally should give more weight to primary evidence and evidence provided in court documents, medical reports, police reports, and other official documents.^[17] Self-petitioners who submit affidavits are encouraged, but not required, to provide affidavits from more than one person. Any form of documentary evidence may be submitted, and the absence of a particular form or piece of evidence is not grounds for denial of the self-petition.

USCIS may issue a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) to notify self-petitioners of deficiencies in the self-petition and to allow them an opportunity to respond before issuing a final decision.^[18]

C. Decision

1. Discretion

The decision to approve or deny a self-petition is not discretionary.^[19] If USCIS determines that the noncitizen meets all the eligibility requirements for the self-petition, USCIS approves the self-petition. If derogatory information unrelated to eligibility for the self-petition is discovered, the officer may forward the information to an investigation unit for appropriate action. Unless the derogatory information relates to eligibility for the self-petition, however, such information cannot serve as the basis for a denial.

2. Approvals

If USCIS determines that the facts and information provided with the Form I-360 demonstrate eligibility by a preponderance of the evidence, USCIS approves the self-petition.

Self-petitioning spouses, children, and parents of abusive U.S. citizens are considered immediate relatives and make seek adjustment of status or an immigrant visa immediately after approval of the self-petition, as a visa is immediately available for this category of family-based immigrants.^[20] Immediate relatives in the United States also have the option to file an application for adjustment of status concurrently with the self-petition, as the visa is immediately available after the petition is approved.^[21]

Self-petitioning spouses and children of abusive LPRs receive a visa number from a family-based preference category when the self-petition is approved and may file an application for adjustment of status or seek an immigrant visa when a visa is available.^[22] If a self-petitioner seeks an immigrant visa from outside the United States, USCIS forwards the self-petition to the National Visa Center.^[23]

Note that an approved self-petition does not confer immigration status to self-petitioners and their derivative beneficiaries. An approved self-petition provides immigrant classification so that the self-petitioner and any derivative beneficiaries have a basis upon which they may be eligible to apply for lawful permanent resident status.

Employment Authorization

Approved self-petitioners and their derivative beneficiaries are eligible for employment authorization.^[24] USCIS may issue an employment authorization document (EAD) to principal self-petitioners upon approval if they requested an EAD on Form I-360.^[25]

Derivative beneficiaries may apply for an EAD by submitting an Application for Employment Authorization (Form I-765) and supporting documentation of the principal’s approved self-petition and of the qualifying derivative relationship. Persons eligible for employment authorization based on an approved self-petition receive an EAD with a (c)(31) employment authorization code.

Approved principal self-petitioners and derivative beneficiaries must file Form I-765 when renewing their VAWA-based employment authorization.^[26] Principal self-petitioners and derivatives who are living outside of the United States are not eligible to receive an EAD.

Deferred Action

Approved self-petitioners and their derivative beneficiaries may be considered for deferred action on a case-by-case basis.^[27] Derivative beneficiaries requesting deferred action must include a copy of the self-petitioner’s approval notice and evidence of the qualifying derivative relationship with the request.

3. Denials

If USCIS finds that the facts and information provided with the Form I-360 do not demonstrate eligibility by a preponderance of the evidence, then USCIS denies the self-petition. USCIS notifies the self-petitioner of the denial in writing and provides the reason(s) for the denial and the right to appeal the decision.^[28] A denial of a self-petition does not prevent the self-petitioner from filing another self-petition.

D. Special Considerations for Self-Petitions Filed Subsequent to Family-Based Immigrant Petition and Adjustment Application

Self-petitioners may have previously been the beneficiary of a Petition for Alien Relative (Form I-130) and filed an Application to Register Permanent Residence or Adjust Status (Form I-485) before filing the self-petition. If the Form I-485 is pending, self-petitioners may notify USCIS either verbally in person or in writing by mail to the local USCIS field office that they filed a self-petition, and request that USCIS hold adjudication of the Form I-485 until the Form I-360 is adjudicated and change the underlying basis of the pending Form I-485 to the self-petition.

If a person intends to file a self-petition, they may notify USCIS either verbally in person or in writing by mail to the local USCIS field office of their intention to file the Form I-360 and request that USCIS hold the adjudication of the Form I-485. The written notification should contain the person’s name and A-Number, and a safe address where USCIS can contact them. The person has 30 days from the day USCIS receives notification of the request to file the Form I-360. If the self-petitioner does not file a self-petition within 30 days of the request, USCIS continues adjudication of the Form I-485 based on the Form I-130. Officers may check USCIS electronic systems to confirm that a self-petition was filed.

When a person notifies USCIS that they intend to file a self-petition or have already filed a self-petition, DHS considers the confidentiality protections at 8 U.S.C. 1367(a)(1) to apply to the self-petitioner.^[29] However, if the person does not file a self-petition, USCIS concludes they do not want be treated as a VAWA self-petitioner and the protections of 8 U.S.C. 1367 will not apply to the adjudication of any forms.^[30]

Footnotes

[^ 1] See 8 CFR 204.2(e)(6).

[^ 2] See the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-193 (PDF), 110 Stat. 2105 (August 22, 1996) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208 (PDF), 110 Stat. 3009 (September 30, 1996), which restricted eligibility for public assistance to “qualified aliens.”

[^ 3] See Pub. L. 104-193 (PDF), 110 Stat. 2105 (August 22, 1996).

[^ 4] See 8 CFR 204.2(c)(6)(ii). See 8 CFR 204.2(e)(6)(ii). For more information, see Chapter 2, Eligibility Requirements and Evidence [3 USCIS-PM D.2].

[^ 5] See 8 CFR 204.2(c)(6)(ii). See 8 CFR 204.2(e)(6)(ii).

[^ 6] See 8 CFR 204.2(c)(6)(iii). See 8 CFR 204.2(e)(6)(iii).

[^ 7] See 62 FR 60769, 60770 (PDF) (November 13, 1997).

[^ 8] See 8 CFR 103.2(b)(8).

[^ 9] See 8 CFR 204.2(c)(6)(ii). See 8 CFR 204.2(e)(6)(ii).

[^ 10] See 8 CFR 204.2(c)(6)(iii). See 8 CFR 204.2(e)(6)(iii).

[^ 11] See Matter of Chawathe (PDF), 25 I&N Dec. 369 (AAO 2010); Matter of Martinez (PDF), 21 I&N Dec. 1035, 1036 (BIA 1997); and Matter of Soo Hoo (PDF), 11 I&N Dec 151 (BIA 1965). Note that in certain circumstances, the self-petitioner may be required to satisfy a higher standard of proof. See Chapter 3, Effect of Certain Life Events, Section B, Self-Petitioner’s Marriage or Remarriage [3 USCIS-PM D.3(B)].

[^ 12] See INA 291. See Matter of Brantigan (PDF), 11 I&N Dec. 493 (BIA 1966).

[^ 13] See 8 CFR 204.1(f).

[^ 14] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i). See 61 FR 13061 (PDF) (March 26, 1996).

[^ 15] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i). See 8 CFR 103.2(b)(2)(iii). See 8 CFR 204.2(e)(2)(i). See 61 FR 13061 (PDF) (March 26, 1996).

[^ 16] See INA 204(a)(1)(J). See 8 CFR 204.2(c)(2)(i). See 8 CFR 204.2(e)(2)(i). See 61 FR 13061 (PDF) (March 26, 1996).

[^ 17] See 61 FR 13061, 13068 (PDF) (March 26, 1996).

[^ 18] See 8 CFR 103.2(b)(8).

[^ 19] See INA 204(b).

[^ 20] See INA 201(b). See INA 245(a). See 8 CFR 245.2(a)(2)(i). See 8 CFR 245.1(g).

[^ 21] See 8 CFR 245.2(a)(2)(i)(B) and (C).

[^ 22] See INA 203(a). See INA 245(a). See 8 CFR 245.2(a)(2)(i). See 8 CFR 245.1(g). Visa availability depends on several factors, including the self-petitioner’s immigrant classification. Information on visa availability and priority dates is available at the Adjustment of Status Filing Charts from the Visa Bulletin web page. For more information, see Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 3, Filing Instructions, Section B, Definition of Properly Filed, Subsection 4, Visa Availability Requirement [7 USCIS-PM A.3(B)(4)] and Chapter 6, Adjudicative Review, Section C, Verify Visa Availability [7 USCIS-PM A.6(C)].

[^ 23] See 8 CFR 204.2(c)(3)(i). See 8 CFR 204.2(e)(3)(i).

[^ 24] See INA 204(a)(1)(K). See INA 204(a)(1)(D)(i)(II). See INA 204(a)(1)(D)(i)(IV).

[^ 25] See INA 204(a)(1)(K). See the Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360).

[^ 26] For additional information on VAWA-based employment authorization, see Instructions for Form I-360 and the Application for Employment Authorization (Form I-765).

[^ 27] See INA 103(a). See INA 204(a)(1)(D)(i)(II). See INA 204(a)(1)(D)(i)(IV). See Heckler v. Chaney, 470 U.S. 821, 831 (1985). Note that deferred action does not permit a person to re-enter the United States lawfully without prior approval if the person were to depart the country.

[^ 28] See 8 CFR 204.2(c)(3)(ii). See 8 CFR 204.2(e)(3)(ii). See 8 CFR 103.3(a).

[^ 29] See 8 U.S.C. 1367. See DHS Directive, “Implementation of Section 1367 Information Provisions,” Instruction Number: 002-02-001, issued November 1, 2013 (PDF). For more information, see Volume 1, General Policies and Procedures, Part A, Public Services, Chapter 7, Privacy and Confidentiality, Section E, VAWA, T, and U Cases [1 USCIS-PM A.7(E)].

[^ 30] See 8 U.S.C. 1367(a)(1).